Calcutta High Court (Appellete Side)
Sri Prahlad Roy vs Sri Asit Roy on 10 August, 2023
10.08.2023
Court No. 19
Item No.16
CP
C.O. 2010 of 2021
With
CAN 1 of 2022
Sri Prahlad Roy
Vs.
Sri Asit Roy
Mr. Probal Kumar Mukherjee, Sr. Advocate
Mr. Somnath Roy Chowdhury
...for the petitioner.
Mr. Tanmoy Mukherjee
Mr. Souvik Das
Mr. Rudranil Das
Mr. K. R. Ahmed
Mr. Soumava Santra
....for the opposite party.
This revisional application has been filed by
the plaintiff in Title Suit No. 293 of 2018. The order
dated September 9, 2021, passed by the learned Civil
Judge (Senior Division), 3rd Court at Howrah is under
challenge. By the order impugned, the counter claim
filed by defendant in the suit, was accepted.
Mr. Mukherjee, learned senior advocate
appearing on behalf of the plaintiff, has assailed the
order impugned on two grounds:
a) The law did not provide any option to file a
counter claim after the written statement
had been filed.
2
b) The document which has been challenged
in the said counter claim was executed on
May 28, 2016 and the knowledge of the
same was available to the defendant from
February 8, 2017. Yet, the counter-claim
was filed belatedly.
c) As the counter claim seeks to impugn a
document which was in the knowledge of
the defendant for more than three years.
The cause of action was ex facie barred by
the law of limitation.
Mr. Mukherjee, has taken the court through
various paragraphs of the plaint, applications and
the counter claim. Reliance has also been placed on
the decision of this court in the matter of Serajul
Alam Mondal & ors. Vs. Hafiza Bibi & ors., in C.O.
3556 of 2019, reported in 2021 (2) ICC 777.
According to him, this court had held that challenge
to a deed of sale executed on April 19, 1954, after
almost 11 years from the date of knowledge, was ex
facie barred by law. On such finding, this court had
rejected a prayer for amendment of the plaint.
Mr. Mukherjee further contends that the
counter claim was filed after framing of issues and,
hence, even going by the law laid down by the
Hon'ble Apex Court in the recent past, the said
3
counter claim could not have been filed at such a
belated stage.
Mr. Tanmoy Mukherjee, learned advocate
appearing on behalf of the defendant/opposite party,
submits that the learned court below did not decide
the merit of the cause of action pleaded in the
counter claim. All that the learned court decided was
that at the stage of admission of the counter claim,
the question of limitation could not be decided.
Limitation was a mixed question of law and fact. The
learned court further held that the law provided
ample scope for acceptance of the counter claim
belatedly, even after the written statement had been
filed. Referring to the counter claim, learned
Advocate submits that the case of the defendant was
that the impugned deed was executed in the teeth of
an order of injunction. Such being the position, the
deed of sale was ipso facto void and was not required
to be avoided. Hence, the law of limitation would not
apply while challenging such a deed. Learned
Advocate submits that when an instrument is
voidable, the question of avoiding the same will arise
and the law of limitation would be pressed into
operation. On this issue, Mr. Tanmoy Mukherjee
relies on a decision of the Hon'ble Apex Court in the
matter of Balvant N. Viswamitra vs. Yadav Sadashiv
Mule, reported in (2004) 8 SCC 706.
4
In the said decision, the Hon'ble Apex Court
held that a decree which was void ab initio was a
nullity and was not required to be challenged. On the
contrary, a decree which was irregular or erroneous
would not be a nullity and its invalidity could not be
set up whenever and wherever it was sought to be
enforced or relied upon. The said decree would have
to be challenged.
On this principle Mr. Mukherjee further relies
on a decision of the Hon'ble Apex Court in the matter
of Prem Singh & ors. Vs. Birbal & ors., reported in
(2006) 5 SCC 353. In this case, the Hon'ble Apex
Court specifically laid down the principle of law that
when a transaction was void, a suit challenging such
transaction could be instituted at any time and the
provisions of the Limitation Act would not be
attracted.
Next, it is contended that in the decision of
Ranganayakamma vs. K. S. Prakash, reported in
(2008) 15 SCC 673, the Hon'ble Apex Court laid
down the principle that the applicability of the laws
of limitation in respect of a deed or transaction which
was sought to be challenged, would indisputably
depend upon the question whether the deed was
required to be set aside or was not required to be set
aside on the ground of the same being void ab initio.
5
On this principle, Mr. Mukherjee argued that
in the present case the deed of sale was executed in
the teeth of an order of injunction. The law is well-
settled that any transaction or transfer of property in
violation of the order of injunction was a nullity and
did not have any existence in the eye of law. Such
being the facts, the defendant was not required to
challenge the deed within three years from the date
of knowledge. According to Mr. Mukherjee, the
question of limitation would arise only when the
learned court would come to a finding that the
impugned deed of sale or the transaction by virtue of
the deed of sale was a void transaction. Reference
has been made to the decision of Surjit Singh & ors.
Vs. Harbans Singh & ors. , reported in (1995) 6 SCC
50.
Reference is made to a decision of the Hon'ble
Madras High Court in the matter of Natarajan vs.
Paramasivam, in SA No. 215 of 2003, wherein the
High Court has held that the Exhibit A1 being a void
document was not required to be challenged within
the period of limitation. In the case before the
Madras High Court, the challenge to the said
document was brought after 12 years
Having heard learned counsel for the
respective parties, this court is of the view that in the
facts pleaded and the law which have been referred
6
to in different judgments placed by Mr. Mukherjee,
the learned court below was right in holding that
limitation, in this case, was a mixed question of law
and fact and could only be adjudicated at the trial.
The learned court rightly accepted the counter claim
and decided to proceed with the suit by directing the
plaintiff to file a written statement to the same.
Having considered the relevant law laid down
by the Hon'ble Apex Court and the Madras High
Court, this court is of the view that as a positive
statement has been made with regard to the validity
of the instrument which was executed sometime on
May 28, 2016, i.e., during the pendency of an
injunction, such issue has to be decided first by the
learned court. The same can only be decided on
evidence. The pleadings in the counter claim cannot
be said to be ex facie barred by law. Once such issue
as to whether the deed was void or voidable is
decided, only then will the next issue be considered
as to whether the law of limitation would apply and
whether the reliefs claimed in the counter claim as
also the cause of action pleaded therein were barred
by limitation. Both the issues are interlinked and are
required to be decided on evidence.
The question whether a counter claim can be
filed at any time, even after the filing of the written
statement, is no more res integra. It has been held by
7
the Hon'ble Apex Court that in exceptional cases the
counter claim can be filed even after framing of
issues, but before evidence has started.
Reference is made to the decision of Mahesh
Govindji Trivedi vs. Bakul Maganlal Vyas & Ors.
decided in Civil Appeal No.- 7203 of 2022. The
Hon'ble Apex Court held as follows:-
"13. In Ashok Kumar Kalra (supra), the 3-
Judge Bench of this Court essentially
considered the question on reference as to
whether it is mandatory for a counter-claim of
the defendant to be filed along with the written
statement. While answering this question, this
Court underscored the basic principles that
procedural law should not be construed in
such a way that it would leave court helpless;
and that a wide discretion had been given to
the Civil Court regarding the procedural
elements of a suit. Having said so, this Court
observed that a counter-claim is designed to
avoid multiplicity of proceedings; that time
limit for filing a counter-claim is not explicitly
provided for but there is limitation as to the
accrual of the cause of action. However, the
majority opinion has been that the defendant
cannot be permitted to file counter-claim after
the issues are framed and the suit has
proceeded substantially. It was observed and
held in the lead judgment, inter alia, as under:
-
'18. As discussed by us in the preceding
paragraphs, the whole purpose of the
procedural law is to ensure that the legal
process is made more effective in the process of
delivering substantial justice. Particularly, the
purpose of introducing Rule 6-A in Order 8
CPC is to avoid multiplicity of proceedings by
driving the parties to file separate suit and see
that the dispute between the parties is decided
finally. If the provision is interpreted in such a
way, to allow delayed filing of the counterclaim,
the provision itself becomes redundant and the
purpose for which the amendment is made will
be defeated and ultimately it leads to flagrant
miscarriage of justice. At the same time, there
cannot be a rigid and hyper-technical approach
that the provision stipulates that the
counterclaim has to be filed along with the
written statement and beyond that, the court
has no power. The courts, taking into
consideration the reasons stated in support of
the counterclaim, should adopt a balanced
approach keeping in mind the object behind
the amendment and to subserve the ends of
justice. There cannot be any hard and fast rule
to say that in a particular time the
counterclaim has to be filed, by curtailing the
discretion conferred on the courts. The trial
court has to exercise the discretion judiciously
and come to a definite conclusion that by
allowing the counterclaim, no prejudice is
caused to the opposite party, process is not
unduly delayed and the same is in the best
interest of justice and as per the objects sought
to be achieved through the amendment. But
however, we are of the considered opinion that
the defendant cannot be permitted to file
counterclaim after the issues are framed and
after the suit has proceeded substantially. It
would defeat the cause of justice and be
detrimental to the principle of speedy justice as
enshrined in the objects and reasons for the
particular amendment to CPC."
In the matter of Ashok Kumar Kalra vs. Wing
Cdr. Surendra Agnihotri & Ors. reported in (2020)
2 SCC 394, one of the Hon'ble Judges of the bench
held that though the normal rule was that
subsequent to filing of written statement, counter-
claim could not be filed after issues have been
framed, but under exceptional circumstances,
counter-claim could be permitted to be filed even
after issues had been framed, but before
commencement of recording of plaintiff's evidence.
The Hon'ble Judge observed, inter alia, as follows:-
"25. Having considered the previous judgments
of this Court on counterclaims, the language
employed in the rules related thereto, as well
as the intention of the Legislature, I conclude
that it is not mandatory for a counterclaim to
be filed along with the written statement. The
Court, in its discretion, may allow a counter-
claim to be filed after the filing of the written
statement, in view of the considerations
mentioned in the preceding paragraph.
However, propriety requires that such
discretion should ordinarily be exercised to
allow the filing of a counter claim till the
framing of issues for trial. To this extent, I
concur with the conclusion reached by my
learned Brothers. However, for the reasons
stated above, I am of the view that in
exceptional circumstances, a counterclaim may
be permitted to be filed after a written
statement till the stage of commencement of
recording of the evidence on behalf of the
plaintiff."
Thus, this court upholds the order of the
learned trial court with the following modifications:
a) The cause of action pleaded in the counter
claim shall not relate back to the date of the
filing of the written statement.
b) An issue will be framed as to whether the
deed of sale dated May 28, 2016 is a void
document or a voidable document.
c) Further issue will be framed as to whether
the reliefs claimed in the counter claim and
the cause of action pleaded were barred by
the laws of limitation, and shall be
answered on the findings of issue (b) above.
With the above order, the revisional application
is disposed of.
Time to file the written statement is extended
by a period of two weeks from date.
With the disposal of the revisional application,
connected application, if any, is also disposed of.
There shall be no order as to costs.
Parties are to act on the server copy of this
order.
(Shampa Sarkar, J.)
